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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-southern judicial district

No. 99-015

CORINNE BLAGBROUGH & a.

v.

TOWN OF WILTON

July 5, 2000

Cook & Molan, P.A., of Concord (John S. Krupski on the

brief, and Shawn J. Sullivan orally), for the plaintiffs.

Devine, Millimet & Branch, P.A., of Manchester (John P. Sherman

on the brief and orally), for the defendant.

NADEAU, J. The defendant, Town of Wilton, appeals from an order

of the Superior Court (Dalianis, J.) finding a bridge on land of
the plaintiffs, Corinne Blagbrough and the Blagbrough Family
Trust, to be public. The plaintiffs cross-appeal an earlier
order granting the defendant partial summary judgment finding
the same bridge and a driveway crossing the bridge to be
private. We affirm the granting of summary judgment and reverse
the finding that the bridge is public.

William and Corinne Blagbrough purchased a residence on Burton

Highway in Wilton in 1963. The property is accessed by a
driveway consisting of two paths which enter from Burton
Highway, converge at the entrance to the bridge, and create a
"Y" pattern. Bounded by Burton Highway, the bridge, and the two
paths, is a triangular tract of land consisting of approximately
1300 square feet. After crossing the bridge, the driveway
provides access solely to the plaintiffs' property.

Neither the Blagbroughs' deed nor a title search conducted when

they purchased the property indicates that the driveway or
bridge are public. In 1989, however, the town strengthened the
bridge in accordance with State guidelines. The town also listed
the driveway and bridge in 1990 with the New Hampshire
Department of Transportation as a class V public highway. See
RSA 229:5, VI (Supp. 1999).

During the 1960s and 1970s, the town plowed and sanded the
driveway and bridge. At some point in the 1970s, however, the
town ceased plowing the driveway from the bridge to the
residence, informing the Blagbroughs that it no longer
maintained private driveways. The town, nevertheless, continued
to sand the bridge and the driveway from Burton Highway to the
bridge, and occasionally plowed those portions, frequently at
the Blagbroughs' request.

Because the portion of the driveway approaching the bridge from

Burton Highway was curved, and because the entrance to the
bridge was narrow, the plowing blade on the front of the town's
truck prevented the truck from entering the bridge. Thus, to
sand and plow the bridge and driveway, the town was required to
back into the driveway and bridge from Burton Highway, a
maneuver that was both difficult and dangerous. In 1996, the
town's road agent informed Corinne Blagbrough that he intended
to straighten the approach to the bridge to make the approach
safer, and in October 1996 the town removed maple saplings and
brush from the triangle and spread asphalt in their place.

The Blagbroughs filed suit against the town. They alleged that
the bridge was public, but that the driveway was private. They
asserted that the town's action in removing the vegetation from
the triangle constituted willful trespass (count I), and
violated the timber trespass statute, RSA 227-J:8 (Supp. 1999)
(count II). They also asserted that the town intentionally
listed their private driveway as a class V highway, received
federal funding to maintain the driveway, and failed to expend
the money on the driveway, thereby committing fraud and a
temporary taking of their property (count III). Finally, they
alleged that the town breached its duty to maintain the bridge
(count IV), and sought injunctive relief requiring the town to
maintain the bridge (count V).
Prior to trial, William Blagbrough died and the Blagbrough
Family Trust was added as a plaintiff.

The town moved for summary judgment on counts III, IV, and V,
submitting the deed to the property and the abstract of title
created when the Blagbroughs purchased the property, which
revealed no encumbrances for public use. The town also submitted
the pleadings and deposition testimony of Corinne Blagbrough
indicating the Blagbroughs' position that the driveway was
private. The trial court granted the motion as to counts IV and
V, finding under RSA 229:1 (1993) "no genuine issue of material
fact indicating that plaintiffs' driveway and bridge were ever
classified as a public highway." The court also granted the
motion as to count III on grounds not challenged on appeal.

More than four months later, the plaintiffs moved to reconsider

or alternatively for a new trial, arguing that newly discovered
evidence indicated that the town's highway layout of 1765
included the bridge and the portion of the driveway from Burton
Highway to the bridge. In support of the motion, the plaintiffs
submitted a report drafted by a witness they retained as an
expert land surveyor and forester. They also submitted what is
purported to be part of a town meeting record from 1765 that the
expert construed to support his conclusion. The trial court
denied the motion without opinion.

After a bench trial on counts I and II, the trial court

concluded that the town had committed a trespass by removing the
vegetation from the triangle, but found that the damages were de
minimis. Although the trial court recognized that "the history
of this driveway and bridge is now irrelevant to the instant
proceeding," the court also found that the bridge is a public
bridge that the town has a duty to maintain. This appeal and
cross-appeal followed.

The town argues that the trial court erred by finding, in its
order on the merits of the trespass claims, that the bridge
servicing the plaintiffs' private driveway was public. The
plaintiffs cross-appeal the grant of partial summary judgment
finding that the bridge and driveway were private.

We address first the plaintiffs' contention that the trial court

erred by granting partial summary judgment.

In reviewing a grant of summary judgment, we

look at the affidavits and other evidence,
and all inferences properly drawn therefrom,
 in the light most favorable to the non-
moving party. If our review of that evidence
discloses no genuine issue of material fact,
and if the moving party is entitled to
judgment as a matter of law, we will affirm
the grant of summary judgment. We consider a
disputed fact "material" for purposes of
summary judgment if it affects the outcome
of the litigation under the applicable
substantive law.

Sandford v. Town of Wolfeboro, 143 N.H. 481, 484, 740 A.2d 1019,
1021 (1999) (quotations, citations, and brackets omitted); see
RSA 491:8-a (1997). Once the moving party has shown the absence
of a genuine issue of material fact, the opposing party "must
set forth specific facts showing the existence of a genuine
issue for trial. Mere denials or vague and general allegations
of expected proof are not enough." Omiya v. Castor, 130 N.H.
234, 237, 536 A.2d 194, 196 (1987) (quotation and citations
omitted).

RSA 229:1 establishes how a road becomes public in New

Hampshire. See Catalano v. Town of Windham, 133 N.H. 504, 508,
578 A.2d 858, 861 (1990). The statute provides:

Highways are only such as are laid out in

the mode prescribed therefor by statute, or
roads which have been constructed for public
travel over land which has been conveyed to
a city or town or to the state by deed of a
fee or easement interest, or roads which
have been dedicated to the public use and
accepted by the city or town in which such
roads are located, or roads which have been
used as such for public travel, other than
travel to and from a toll bridge or ferry,
for 20 years prior to January 1, 1968, and
shall include the bridges thereon.

(Emphasis added.) RSA 234:2 (1993) further defines "bridge" as

a structure, having a clear span of 10 feet

or more measured along the center line of
the roadway at the elevation of the bridge
seats, spanning a water course or other
opening or obstruction, on a public highway
to carry the traffic across, and shall
 include the substructure, superstructure and
approaches thereto.

(Emphasis added.) The legislature has delegated to towns a duty

to maintain and repair bridges located on class IV or V public
highways. See RSA 231:90-:92 (1993); RSA 234:20 (1993).

When construed together, see Rye Beach Country Club v. Town of

Rye, 143 N.H. 122, 126, 719 A.2d 623, 625 (1998), these statutes
indicate that a bridge is public if the road it services is
public. Cf. The Town of Troy v. Cheshire Railroad Company, 23
N.H. 83, 95 (1851) (bridges ordinarily "are deemed to constitute
a part of the public highways").

Because the statutes do not on their face obligate towns to

maintain bridges that are on private roads, and because such a
construction would lead to the absurd result of obligating towns
to maintain bridges to which the public has no right of access,
see Atwood v. Owens, 142 N.H. 396, 398, 702 A.2d 333, 335 (1997)
(statutes not interpreted to lead to absurd result), we conclude
that a bridge is likewise private if the road it services is
private.

In its motion for summary judgment, the town argued that because
the plaintiffs could not prove the driveway had become public
pursuant to RSA 229:1, the town had no duty to maintain either
the driveway or the bridge. In their objection, the plaintiffs
alleged they would "show that the portion of driveway crossing
the bridge . . . is public through dedication and use for public
travel for twenty years prior to January 1, 1968 since around
1834 and thereafter." On appeal, the plaintiffs contend the
evidence, viewed in their favor, supports a finding that the
driveway had become public through twenty years of public use.
We disagree.

We have construed the "public use" provision of RSA 229:1 as

describing the establishment of a public highway through
prescription. See Town of Warren v. Shortt, 139 N.H. 240, 243,
652 A.2d 140, 141 (1994). "[A] party claiming an easement by
prescription must demonstrate more than a showing of public use
for twenty years; the public use additionally must be shown to
have been adverse." Id. In this case, to raise an issue of fact
as to whether the driveway and bridge had become public through
prescription, the plaintiffs were required to submit evidence
from which the trial court could conclude that for twenty years
prior to 1968, the public used the driveway under a claim of
right without the owner's permission. See Catalano, 133 N.H. at
510, 578 A.2d at 861.

Where . . . this essential element is left

to be implied solely from the public use, it
must appear that such use was of a character
calculated to apprise the owner that it was
had under a claim of right. The nature of
the use must be such as to show that the
owner knew, or ought to have known, that the
right was being exercised, not in reliance
upon his toleration or permission, but
without regard to his consent.

Id. at 509-10, 578 A.2d at 861 (quotation omitted).

The plaintiffs rely upon a statement in Corinne Blagbrough's

affidavit that "[i]n the 1800s the property was used as a public
mill and access was over the [bridge and] the driveway." They
also cite documents containing photographs that the plaintiffs
argue depict the bridge in the 1800s, and records they assert
demonstrate that the town "had allocated moneys for the repair
of bridges in 1873 and 1875."

With respect to the historical documents, we note that at no

time in the trial court did the plaintiffs explain their
significance other than to cite them in their objection for the
proposition that they would prove "the portion of driveway
crossing the bridge" to be public.

Even assuming, however, that the photographs depict the

plaintiffs' property in the 1800s and that the public
expenditures on bridges included their bridge, we conclude that
the submissions fail to support an inference that the public
used the driveway and bridge for a continuous twenty-year period
and that such use was adverse. At most, they support an
inference that the public used the driveway and bridge at some
point in the 1800s.

The plaintiffs further rely upon the report and the purported
town meeting record that the plaintiffs submitted with their
motion to reconsider or for a new trial. The town argues that
the plaintiffs' reliance upon those exhibits is improper as they
were not submitted with their objection to summary judgment.

In its objection to the motion to reconsider, the town argued

that the court should deny the motion as untimely, see Super.
Ct. R. 59-A (motions to reconsider must be filed within ten
days), and that the court should reject the exhibits because
Superior Court Rule 59-A does not authorize the submission of
further evidence. With respect to the request for a new trial,
the town argued that the report was based not on "new evidence,"
but on public records available to the plaintiffs prior to the
motion for summary judgment. The town also argued that the "new
evidence" was unreliable, and would not produce a different
result at a new trial. The trial court denied the motion.

On appeal, the plaintiffs have not addressed the arguments

raised by the town below upon which the trial court could have
relied in denying the motion. It is the plaintiffs' burden on
appeal to demonstrate that the trial court's ruling was clearly
untenable or unreasonable to the prejudice of their case. See
State v. Cochran, 132 N.H. 670, 672, 569 A.2d 756, 757 (1990).
We conclude that the plaintiffs have not carried their burden.

The plaintiffs also rely upon evidence that: (1) the town
maintained the bridge during the winter in the 1960s and 1970s;
(2) the town repaired the bridge on several occasions in the
1990s, and referred to the bridge by a number designated by the
department of transportation; (3) the town listed the driveway
as a class V road in 1990; (4) the town upgraded the bridge in
1989; (5) the town resurfaced the driveway in 1989; and (6) the
town posted a sign at the bridge permitting only passenger
traffic to cross the bridge.

Although this evidence establishes that the town treated the

driveway and bridge as public at times subsequent to 1963, it
fails to demonstrate pursuant to RSA 229:1 that the public used
the driveway and bridge adversely for twenty years prior to
1968.

Finally, we reject the plaintiffs' argument that the references

in their pleadings and evidence submitted at trial to the
bridge's public number and the driveway's listing as a class V
public road support a reversal of summary judgment. Evidence
submitted only at trial is not to be considered in reviewing a
pretrial order on summary judgment. See RSA 491:8-a, III.
Moreover, while the pleadings indicate the plaintiffs' position
that at the very least the bridge was public, those pleadings
fail to establish that the bridge and driveway in fact were
public pursuant to RSA 229:1. Indeed, the pleadings
unequivocally indicate the plaintiffs' position that the
driveway was not public.
In sum, we conclude that the plaintiffs failed to "set forth
specific facts showing the existence of a genuine issue for
trial" as to whether the driveway or bridge ever became public
pursuant to RSA 229:1. Omiya, 130 N.H. at 237, 536 A.2d at 196
(quotation omitted). We have considered the plaintiffs'
remaining arguments with respect to summary judgment and find
them to be without merit, warranting no further discussion. See
Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).
Accordingly, we affirm the grant of partial summary judgment.

Having concluded that the trial court's grant of summary

judgment was proper, we next consider the town's contention that
the trial court's subsequent finding that the bridge was public
was erroneous. "Findings of fact by a trial court are binding on
us unless they are not supported by the evidence or are
erroneous as a matter of law." Sommers v. Sommers, 143 N.H. 686,
690, 742 A.2d 94, 97 (1999) (quotation omitted). The town argues
that the trial court erred as a matter of law because the court
never vacated its original finding that no genuine issue of
material fact existed as to whether the bridge was public.

The town contends that the court "failed to place the [town] on
notice that [it] considered ownership of the bridge to be an
unresolved issue . . . [and] deprived the [town] of the
opportunity to present evidence . . . and to fully cross-
examine" the plaintiffs' witnesses. The plaintiffs counter that
they in fact introduced evidence at trial that the bridge and
driveway were public, and that the court has discretion to
reverse an erroneous order on summary judgment sua sponte.

The plaintiffs rely upon Cilley v. New Hampshire Ball Bearings,

Inc., 128 N.H. 401, 514 A.2d 818 (1986). In Cilley, we held that
a trial judge may sua sponte reverse a prior denial of summary
judgment because such power is consistent with the purpose
inherent in RSA 491:8-a of eliminating the expense of trial
where no issue of material fact remains, and because the parties
previously had been granted a full opportunity to be heard on
the motion. See Cilley, 128 N.H. at 405, 514 A.2d at 820.

In this case, however, the trial court's initial ruling granted

the town summary judgment on the plaintiffs' claims with respect
to the town's duty to maintain the bridge. "Once a [trial] judge
issues a partial summary judgment order removing certain claims
from a case, the parties have a right to rely on the ruling by
forbearing from introducing any evidence or cross-examining
witnesses in regard to those claims." Leddy v. Standard Drywall,
Inc., 875 F.2d 383, 386 (2d Cir. 1989). Accordingly, unlike the
plaintiff in Cilley, the town justifiably relied upon the trial
court's pretrial ruling and, therefore, was effectively denied
the opportunity to proffer evidence at trial on the issue it
assumed to be settled. See Algie v. RCA Global Communications,
Inc., 891 F. Supp. 875, 883 (S.D.N.Y. 1994), aff'd, 60 F.3d 956
(2d Cir. 1995).

We hold that before a trial court may reverse a pretrial ruling

that disposes of an issue for trial, the court must provide the
parties with notice adequate to "give them an opportunity to
present evidence relating to the newly revived issue" at trial.
Leddy, 875 F.2d at 386. We conclude that the court's finding
that the bridge was public and that the town has a duty to
maintain it was legally erroneous and prejudicial; it was
directly contrary to the court's orders granting partial summary
judgment and denying the plaintiffs' motion to reconsider, and
the court provided no notice that ownership of the bridge was an
issue to be resolved at trial. Accordingly, we reverse the
finding and need not address the town's remaining arguments.

Affirmed in part; reversed in part.

BROCK, C.J., and HORTON and BRODERICK, JJ., did not sit;
DALIANIS, J., was recused and did not sit or participate in the
decision; GRAY, J., retired superior court justice, McHUGH and
GROFF, JJ., superior court justices, sat by special assignment
under RSA 490:3; all who sat concurred.